Archive for January, 2011

Boston, MA. Jan. 25 — The state Appeals Court has ruled that someone who inserts a key in a car’s ignition and turns on the vehicle’s electricity without starting the engine can be convicted of drunken driving.

Robert S. McGillivary of Salisbury appealed his 2007 drunken driving conviction on the grounds that he was not operating the vehicle when an officer found him slumped over the steering wheel with the key in the ignition and the dashboard illuminated.

The court said Tuesday that turning the key is the first step in a sequence to set the vehicle in motion and "was sufficient to permit the jury to conclude that he ’operated’ the motor vehicle."

So…if you point a gun at someone, you’re guilty of murder?

There may be some logic to charging attempted drunk driving for putting a key in the ignition and then falling asleep, but it’s a corruption of the legal system to pretend that the crime actually took place.

So you’re driving along and suddenly there are flashing red lights in your rear view mirror. You recall that glass of wine with dinner: not nearly enough to be over .08%, of course, but enough to cause an odor of alcohol on the breath. As you pull over, you grab the breath freshener and quickly spray it into your mouth. The officer asks you to step out of the car, holds out a portable breath testing device and asks you to blow into it. A moment later you are being handcuffed.

What happened? One of the many problems with breath machines is that they cannot tell the difference between alcohol coming from the lungs and alcohol which is already in the mouth or throat. This problem is referred to as mouth alcohol, and is particularly troublesome because, believing it to be alcohol from the lungs, the breath machines will incorrectly multiply the detected alcohol by 2100 times (see my earlier post, Breathalyzers — and Why They Don’t Work).

One common source of breath alcohol is breath spray, as well as mouthwash — both of which contain significant amounts of alcohol. Listerine, for example, contains 27% alcohol, Scope 19% and Astring-O-Sol 76%. Even a tiny amount of this on the breath or in the throat, if multiplied by the machine 2100 times, can result in high breathalyzer readings.

This was clearly illustrated in a study conducted with Listerine mouthwash on a breath machine and reported in an article entitled "Field Sobriety Testing: Intoxilyzers and Listerine Antiseptic", published in the July 1985 issue of The Police Chief . Seven alcohol-free individuals were tested at a police station, with readings of .00%. Each then rinsed his mouth with 20 milliliters of Listerine mouthwash for 30 seconds in accordance with directions on the label. All seven were then tested on the machine at intervals of one, three, five and ten minutes.

The results indicated an average reading of .43% blood-alcohol concentration — indicating a level that, if accurate, approached lethal proportions. After three minutes, the average level was still .20%, despite the absence of any alcohol in the system. Even after five minutes, the average level was .11% — well over the legal limit.

In another study, reported in 8(22) Drinking/Driving Law Letter 1, a scientist tested the effects of Binaca breath spray on an Intoxilyzer 5000. He performed 23 tests with subjects who sprayed their throats, and obtained readings as high as .81% — far beyond lethal levels. The scientist also noted that the effects of the spray did not fall below detectable levels until after 18 minutes.

5 Bicyclists Arrested on Suspicion of DUI in L.A.
Los Angeles, CA. Jan. 13 – Five bicycle riders have been arrested on suspicion of riding under the influence in South Los Angeles after officers gave sobriety tests to a pack of pre-dawn bikers.

California Highway Patrol Officer Travis Ruiz says officers were called to the Baldwin Hills area at around 1:30 a.m. Thursday after a bicycle lost control and crashed to the pavement.

Ruiz says while officers were there, 15 bicyclists came up to check on their friend. Ruiz says they were riding on both sides of the street without helmets and were barely visible to motorists.

I believe in the Constitution. And I have railed long and hard in books, lectures and this blogsite about the damage being done to that great document in the name of fine-sounding schemes like "homeland security" and the so-called "war on drunk driving".

Our Constitution is a marvelous document, the cornerstone of a great nation, and one which is admired and emulated around the world. But it is only a document; it has no magic. The Constitution gives the people no more than what is already within them. When the Supreme Court approves warrentless stops and searches of citizens at DUI roadblocks and there is no outcry, the people are getting what they deserve; the document will not save them.

My blog’s banner above says that our Constitution is "fading". That is, of course, inaccurate. The document is quite clear; it is the will and courage of the people that is fading.

The following is from a speech given by the renowned Judge Learned Hand in New York’s Central Park on May 21, 1944:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it. No constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.